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Misc.1

Supreme Court, January, 1896.

ing of a bill therefor, and the nonpayment thereof by Harwood & Irish, subjected the defendant to an action for the recovery of the purchase price of the coal, provided the term of credit did not extend beyond the period of three months.

By the terms of this condition we are brought to the only ques tion urged by the defendant in exoneration of liability: Did the taking of the debtor's notes for the bill rendered for coal, and the renewals thereof, for balances remaining unpaid, from time to time, without the consent of the surety, discharge him from liability? If the giving of these notes, from time to time, suspended the plaintiffs' right of action against Harwood & Irish for any given period, that would be such a departure from the terms of the defendant's undertaking as would discharge him from liability. Dorlon v. Christie, 39 Barb. 610; Delaware, etc., Railroad Co. v. Burkhard, 36 Hun, 57; Place v. McIlvain, 38 N. Y. 96; Parmelee v. Thompson, 45 id. 58; Hubbard v. Gurney, 64 id. 458; Auburn City N. Bank v. Hunsiker, 72 id. 252; Jagger Iron Co. v. Walker, 76 id. 521; Van Giessen v. Bridgford, 83 id. 348; City Nat. Bank v. Phelps, 86 id. 484.

Many of the cases cited hold that the giving and acceptance of the debtor's note, due in the future, have the legal effect to extend the term of credit of the original indebtedness, and bar a right of action thereon during such period; while the cases of Parmelce v. Thompson, supra, and Graham v. Negus, 55 Hun, 440, decide that the mere acceptance of a note of the debtor, representing a pre-existing debt, in the absence of an express agreement that the same be taken in extinguishment of the original debt, or any new consideration for the acceptance of the note, does not operate as an extension of the term of payment so as to bar a right of action thereon. Undoubtedly, the rule that the taking of the note for a pre-existing debt, or as a substitute therefor, operates as an extension of time, must have its foundation in contract, express or implied from the transaction, and this seems to be the doctrine of all the cases. The conflict arises upon the consideration of what constitutes a valid contract for the extension or substitution. We see no substantial reason why the taking of a note or written obligation of the debtor for the amount, and as a representative of the debt, conditioned for future payment, should not give rise to the presumption that the same was given and accepted pursuant to an agreement that the time of the enforcement of the collection of such debt be postponed until the maturity of such

Supreme Court, January, 1896.

[Vol. 16.

note or obligation. A debt being due, with the right of immediate action for its collection, the debtor tendering, and the creditor accepting, his negotiable promissory note for the amount thereof, due at a future day, there seems to be no substantial reason, in law or justice, why it should not be inferred, as matter of fact, that the debtor requested, and the creditor granted, forgiveness of immediate payment.

Assuming the inference of contractual relation from the transaction of the delivery and acceptance of the note or obligation of the debtor, the reason then assigned to defeat the validity of such a contract, by some of the cases cited, is that there is an absence of present consideration to support it; that, in giving such a note or obligation, there is wanting the resulting benefit or disadvantage essential in the law to support a promise. In this conclusion we are unable to agree. While the debtor might be made liable for the debt under prior contract relations, he could not be compelled to acknowledge his indebtedness by a higher grade of evidence such as is furnished by a written obligation. In this the creditor might be benefited. Again, the availability of a negotiable note over that of an ordinary debt for sale or discount must be considered an advantage to the creditor. It is not essential to the validity of a promise that the advantage to the party for whose benefit the promise is made should be equal to the benefit or injury to be sustained by the other. It is sufficient that an advantage or benefit is to be derived by the party who is the recipient of such promise. Regardless of these considerations, if the case of Place v. McIlvain, supra, is to be followed, the acceptance and retention of the notes given by Harwood & Irish to the plaintiffs would operate as an extension of credit of the debt that would be effectual to discharge the surety. Certainly, under the case last cited, the drawing of the draft at three days' sight by the plaintiffs, and the acceptance thereof by Harwood & Irish, had the effect to bar the right of action upon the original debt until default in the payment of the draft.

The complaint in this case should be dismissed.

Complaint dismissed.

Misc.]

Supreme Court, February, 1896.

JOHN COGHLAN, Plaintiff, v. THE THIRD AVENUE RAILROAD Co., Defendant.*

(Supreme Court, New York Trial Term, February, 1896.)

1. Negligence istrator.

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Damages in action by father of deceased, as admin

In an action brought by a father, as administrator, to recover damages for the death of his infant daughter, caused by negligence or wrongful act, where he is the exclusive beneficiary, he may recover the entire pecuniary loss, including loss of services of the infant during minority.

2. Same.

In such case, it is the duty of the jury to consider the probable earnings of the child over and above her support, clothing and education.

MOTION by the plaintiff for a new trial.

Welch & Daniels, for plaintiff.

Hoadly, Lauterbach & Johnson, for defendant.

GILDERSLEEVE, J. The action is brought by the father, as administrator, under the statute (Code, §§ 1902, 1904) to recover damages for the death of his infant daughter, caused by defendant's negligence. The jury was charged as follows: "There can be no recovery in this case whatever for any loss of earnings which the child might have made while she was an infant, and until she had reached the age of twenty-one years. They are the subject of a recovery in a separate action on the part of the father of the child." The jury brought in a verdict for six cents damages in favor of plaintiff, who now makes this motion for a new trial.

In the case of Watson v. Brooklyn City Railroad Company (affirmed, 103 N. Y.. 687, without opinion), an action brought under the statute to recover damages for the death of an infant son, resulting from injuries received through the negligence of defendant, the General Term of the City Court of Brooklyn held that the entire damages could be recovered in that action, one in favor of the father, and the other in favor of the administrator for

Received too late for insertion in proper place.- [Rep.

Supreme Court, February, 1896.

[Vol. 16.

the benefit of the next of kin. The pleadings in that action were identical with those in the case at bar, and, I think, the case is an authority in support of plaintiff's claim on this motion.

The case of Keenan v. Brooklyn City Railroad Company, 145 N. Y. 348, also supports the plaintiff's position. The court there say that "the jury, in determining the amount of damages that should be awarded, was in duty bound to consider the various elements of pecuniary loss sustained by the father; first, the probable earnings of the son during his minority, over and above his support, clothing and education; next, the probability of his living and becoming of sufficient ability to support his father in case of his becoming aged, poor and unable to support himself; and then the jury had the right to consider the amount he would have brought to his next of kin while living, and their prospect of inheriting from him after death." Where the deceased leaves no widow or children, the father, as next of kin, would be entitled to the whole recovery in an action under the statute. Code, § 2732, subd. 7. Also in an action for loss of services during minority, he would be entitled to the whole recovery. Therefore, in such case, where the father is the exclusive beneficiary, the entire pecuniary loss may be recovered in one action. McGovern v. R. R. Co., 67 N. Y. 418. In the case at bar, it must be said that the recovery being exclusively for the benefit of the father, the loss of service during minority and any other pecuniary loss that could be established constitute substantially the same claim. And, in any event, it must be held that the plaintiff herein has elected to proceed for and recover his whole damage, including the loss of services of his child during minority, and that the recovery will be a bar to an action by the father as such, assuming that he has a cause of action independent of the statute. See McGovern v. R. R. Co., supra; Hussner v. R. R. Co., 114 N. Y. 433-38.

The jury should have taken into consideration, in estimating the pecuniary loss, the probable earnings of the child during minority, over and above her support, clothing and education. It was, therefore, error to charge the request above set forth, and for this reason the motion for a new trial should be granted. Under the circumstances, no costs are awarded.

Motion granted, without costs.

MEMORANDA

OF

CAUSES NOT REPORTED IN FULL.

SUPREME COURT — APPELLATE TERM, MARCII, 1896.

JAMES BUTLER, Respondent, v. THE THIRD AVENUE RAILROAD CO., Appellant.

APPEAL by defendant from judgment of the Eleventh District Court

Hoadly, Lauterbach & Johnson, for appellant.

John II. Rogan, for respondent.

Per Curiam. The return shows the usual conflict of evidence found in negligence cases.

The evidence was sufficient to warrant the justice in finding that the injuries complained of were the result of the defendant's negligence, and that the plaintiff was free from fault. The damges allowed were fully substantiated.

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We find no error.

Judgment affirmed, with costs.

Prosent: MoADAM and BISCHOFT, JJ.

Judgment affirmed, with costs.

THE RICHARD TAYLOR CO., Appellant, v. MOTT D. CANNON,

Respondent.

APPEAL by plaintiff from judgment of the Eleventh Judicial District Court in favor of defendant.

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